HF 


IRLF 


(Second  Edition.) 


WRIGHT    ON    BUILDING 
ARBITRATIONS 

A  MANUAL  FOR  ARCHITECTS,  STUDENTS, 
CONTRACTORS  AND  CONSTRUCTION  ENGINEERS 


BY 
G.   ALEXANDER  WRIGHT 

(Member  San  Francisco  Chapter  American  Institute  of  Architects  ;  Member 
Technical  Society  of  the  Pacific  Coast;   author  of  "Wright  on  Quantities"). 


(By  Mail,  One  Dollar) 


Preface  to  Second  Edition 


The  first  edition  of  this  little  Manual  appeared  in  May,  1894, 
and  consisted  principally  of  an  Address  upon  the  subject  of 
Building  Arbitration  given  by  me  before  the  Technical  Society 
of  the  Pacific  Coast.  Having  good  reason  for  believing  that  my 
layman-like  efforts  had  proved  of  service  to  some  who  for  the 
first  time  found  themselves  occupying  the  position  of  Building 
Arbitrator,  I  was  prompted  some  years  later  to  revise  my  earlier 
work  and  to  add  some  other  information  and  data,  including 
several  Forms  for  the  Arbitrator's  use.  My  spare  time  being 
limited,  this  was  not  finally  accomplished  until  early  in  1906, 
and,  unfortunately,  my  manuscript  was  then  destroyed  by  the 
conflagration  of  April  18th  to  21st,  in  that  year,  since  which 
time  I  have  had  only  an  occasional  opportunity  of  again  pro- 
ceeding with  my  task. 

"Building  Arbitrations"  is  not  a  law  book  in  any  sense  of 
the  word,  nor  is  it  intended  to  be  used  as  such.  The  principles 
of  Arbitration  are,  however,  not  difficult  for  the  layman  to 
understand,  and  my  aim  has  been  to  compile  and  codify  the 
facts  in  a  common-sense  and  convenient  form,  with  such  infor- 
mation as  will  enable  the  Architect,  the  Contractor  and  the 
Engineer  to  act  intelligently,  and  in  order,  when  it  becomes 
necessary,  to  occupy  the  honored  position  of  Arbitrator  or 
Umpire  without,  I  hope,  transgressing  those  statutory  require- 
ments essential  to  a  properly  conducted  Arbitration. 

THE  AUTHOR. 


San  Francisco,  June,  1913. 


MANUAL 

ON 

BUILDING  ARBITRATIONS 


For  the  use  of  Architects,  Students,  Contractors,  and  Con- 
struction Engineers,  or  others  who  may  be  called  upon  to  act 
as  Arbitrator  or  Umpire  in  the  settlement  of  disputes  connected 
with  Building  or  Engineering  Construction  operations. 

With  the  following  convenient  Forms,  viz: 
Form  A — Demanding  Arbitration. 
"       B — Accepting  Arbitration. 
"       C — Submission. 
"       D — Acceptance  by  Arbitrators. 
"       E — Acceptance  by  Umpire. 
"       F — Notice  of  Hearing. 

G — Subpoena  for  Witnesses. 
H— Oath  and  Affirmation. 
I_Award. 


RESPECTFULLY   DEDICATED   BY   THE   AUTHOR  TO   HIS   BROTHER   ARCHITECTS, 
AND   CO-WORKERS   THE  CONTRACTORS   AND   ENGINEERS. 


(Volenti  non  fit  injuria) 


CONTENTS 


Chap.        I.     Introduction. 

II.     Building  Arbitration,  Its  Advantages. 

III.  Arbitration :  Its  Place  in  the  Work  of  the  Architect, 

Contractor  and  Engineer. 

IV.  Arbitrators :  Their  Qualifications,  Duties,  Etc. 

V.     Submitting  Matters  in  Dispute  to  Arbitration.   The 
Submission. 

VI.  Mode  of  Procedure. 

"      VII.  The  Award. 

VIII.  Compensation  of  Arbitrators  and  Umpire. 

"         IX.  Convenient  Forms. 


WRIGHT  ON  BUILDING  ARBITRATION. 

CHAPTER  ONE 
Introduction 

It  is  scarcely  possible,  when  considering  the  basic  prin- 
ciples of  Arbitration,  to  present  to  the  reader  anything  that  can 
be  justly  termed  new  or  original.  The  following  pages  consist 
principally  of  notes  made  from  time  to  time  by  the  Author 
for  his  own  guidance,  with  perhaps  some  practical  suggestions; 
also  blank  forms  such  as  he  has  found  useful  in  conducting 
Building  Arbitrations.  The  present  might  well  be  termed  the 
Arbitration  Age,  and  it  is  the  opinion  of  competent  judges 
that  the  arbitration  of  building  disputes  will,  in  the  near  future, 
be  more  frequent  and  more  closely  allied  than  ever  before  with 
the  work  of  the  architect,  the  contractor  and  the  engineer. 

Early  Origin:  The  word  "arbitration"  comes  to  us  from 
the  Latin  "arbitratus"  (to  be  a  hearer)  and  "ar"  and  "betere" 
(to  go  hence,  one  who  goes  to  look  on).  This  method  of  de- 
termining differences  between  men  and  peoples  has  been  prac- 
tised from  earliest  times,  and  distinct  reference  to  its  principles 
are  found  in  the  Scriptures.  The  Amphictyonic  Council,  organ- 
ized 600  B.  C.  for  the  protection  of  the  temple  of  Delphi  and 
the  abolition  of  war,  also  proposed  the  accomplishment  of  its 
object  by  arbitration,  very  much  as  we  know  it  today.  So  well 
recognized  were  these  principles  in  Greece  that  when  Sparta 
and  Argos  made  a  treaty  of  alliance  they  provided  for  the 
settlement  of  their  disputes  by  arbitration,  according  (as  we  are 
told)  to  a  custom  of  their  ancestors.  Again,  the  practice  of 
Arbitration  comes  to  us  from  Justinian  jurisprudence,  and  its 
influence  may  be  traced  throughout  most  civilized  nations. 
Rome,  in  the  pride  of  her  glory  and  power,  acknowledged  the 

5 


good  side  of  arbitration  when  Pompey  directed  the  Parthians 
and  Armenians  to  regulate  their  differences  by  this  means. 

It  is  most  interesting  to  observe  also  that  the  arbitration 
proceedings  of  today  differ  but  very  little  from  those  of  the 
ancient  Greeks,  for  in  their  day  it  was  usual  to  make  agreements 
designating  the  Arbitrator  and  also  the  matters  in  dispute.  It 
was  the  arbitrator  who  fixed  the  time  and  place  of  the  investiga- 
tion, and  he  was  solemnly  pledged  to  discharge  his  trust  hon- 
estly. The  "sentence"  was  also  written  out  and  deposited  in 
temples  and  other  public  places,  and  oaths  were  taken  by  the 
parties  that  they  would  execute  the  sentence  imposed. 

During  the  middle  ages  arbitrations  seem  to  have  been 
more  frequent,  yet  their  beneficial  influence  was  restrained, 
owing  to  the  absence  among  the  people  of  the  idea  of  con- 
ciliation. Blackstone  describes  it  "as  a  method  whereby  the 
parties,  injuring  and  injured,  submit  all  matters  in  dispute  con- 
cerning any  personal  chattels  or  personal  wrongs,  to  the  judg- 
ment of  two  or  more  arbitrators,  who  are  to  decide  the  con- 
troversy, and  if  they  do  not  agree,  it  is  usual  to  add  that  another 
person  be  called  in  as  'umpire,'  to  whose  sole  judgment  it  is 
then  referred,  or  frequently  there  is  only  one  Arbitrator  original- 
ly appointed."  We  find  in  the  latter  case  some  authorities  prefer 
to  use  the  word  "arbiter,"  which  was  also  used  in  this  sense 
under  the  Roman  law. 

Happily  in  modern  times  arbitration  is  still  more  universally 
appreciated  as  a  means  of  settling  differences  of  every  kind, 
from  those  of  international  importance  to  the  adjustment  of  the 
manifold  questions  which  continually  affect  Capital  and  Labor. 
So  general,  indeed,  is  this  principle  that  in  certain  States  even 
breaches  of  contract,  trespass,  assaults,  charges  of  slander,  dif- 
ferences between  partners  and  even  breach  of  promise  may  be 
settled  by  arbitration;  and  so  the  principle  has  come  down  to 
us  in  an  almost  unbroken  line  from  ancient  times. 

Referring  for  a  moment  to  international  arbitration,  it  is 
not  so  long  since  the  Emperor  of  Russia  advocated  a  national 
conference  with  the  object  of  substituting  its  principles  among 
nations  as  a  remedy  for  war.  It  should  be  a  matter  of  pride  to 
American  citizens  to  recall  the  fact  that  since  her  birth  as  a 

6 


nation,  the  United  States  has  ever  been  foremost  in  'Consenting 
to  the  arbitration  of  questions  which  other  nations  might  have 
considered  a  justification  for  bloodshed;  and  we  find  no  fewer 
than  forty-seven  such  cases  in  a  little  over  one  hundred  years, 
an  excellent  showing  indeed.  And  in  addition  to  arbitrating 
her  own  differences  the  United  States  has,  herself,  acted  as 
arbitrator  between  other  nations  upon  some  fourteen  or  more 
different  occasions,  and  even  as  we  go  to  press  the  very  atmos- 
phere from  the  Atlantic  to  the  Pacific  appears  to  be  charged 
with  appeals  for  arbitration. 


CHAPTER  TWO 
Building  Arbitration:    Its  Advantages 

A  BUILDING  ARBITRATION  in  its  broadest  sense  is, 
we  may  consider,  a  kind  of  friendly  tribunal  substituted  for  a 
regularly  recognized  court,  and  permitted  by  statute  which  is, 
very  properly,  somewhat  arbitrary  and  strict  in  regard  to  the 
proper  methods  of  procedure.  The  bringing  about  of  arbitra- 
tion is  a  voluntary  act  on  the  part  of  disputants,  who  by  its 
means  select  their  own  judges,  and  it  becomes,  when  properly 
conducted,  a  speedy  and  inexpensive,  and  should  be  a  friendly 
way  of  finally  adjusting  and  determining  almost  any  dispute 
which  may  arise  in  connection  with  construction  work.  It  must 
not,  however,  be  supposed  by  the  layman  that  arbitration  can 
at  all  times  take  the  place  of  the  law,  nor  does  it  by  any  means 
dispense  with  the  services  of  the  competent  attorney.  Indeed, 
in  unusually  difficult  or  complicated  .controversies,  professional 
legal  advice  as  to  the  course  of  procedure  is  recommended, 
particularly  in  the  preparation  of  the  Submission,  which  forms 
an  extremely  important  document.  In  such  cases,  too,  the 
"form"  of  the  award  (but  not  the  actual  award)  should  be  pre- 
pared by  or  under  the  advice  of  counsel. 

Arbitration  must  appeal  to  honest  men,  and  to  men  who 
think  right.  It  is  not  for  the  unprincipled,  and  men  whose  sole 
desire  is  to  get  the  best  of  each  other.  It  is  an  honest  and 

7 


manly  way  to  settle  an  honest  difference  between  man  and  man. 
The  Chicago  Daily  Tribune  of  February  1,  1912,  quoted  the 
recent  remarks  of  a  prominent  jurist  at  a  monthly  meeting  of 
the  Chicago  Bar  Association  as  follows :  "The  chief  reasons  why 
the  members  were  discussing  the  questions  of  reform  in  the 
practice  and  procedure  of  their  courts,  was  the  demand  through- 
out the  United  States  that  legal  procedure  be  made  more  effec- 
tive, more  speedy,  more  just."  At  the  same  meeting  the  presi- 
dent read  a  letter  expressing  the  views  of  another  distinguished 
member  of  the  Chicago  Bar,  as  follows:  "The  great  and,  in 
my  opinion,  chief  trouble  with  our  administration  of  the  law  is 
that  a  trial  in  court  is  regarded  and  treated  as  a  'battle/  in 
which  the  contestants  may,  without  loss  of  self-respect,  use  all 
means  not  bordering  upon  the  downright  criminal,  to  gain  their 
ends,  and  if  deemed  expedient,  to  obstruct  the  cause  of  justice." 
Another  member  present  recited  the  simplicity  of  procedure  in 
Courts  of  Admiralty.  "We  proceed,"  said  he,  "as  if  they  were 
courts  of  justice.  The  procedure  in  the  State  Courts  is  such 
an  abomination  that  if  the  laymen  knew  as  much  about  the 
practice  as  we  do,  they  would  rise  up  and  smite  it." 

Such  views  from  authoritative  lips  must  surely  prompt  the 
technical  layman  to  regard  arbitration  with  still  greater  favor, 
for  the  prompt,  equitable  adjustment  of  technical  differences. 

It  may  be  of  interest  to  note  in  passing  that  in  1911  the 
Chamber  of  Commerce  of  New  York  issued  a  very  convincing 
pamphlet  entitled  "Commercial  Arbitration,"  showing  how  dis- 
putes may  be  adjusted  without  litigation,  and  the  interested 
reader  might  well  procure  and  read  this  publication,  which, 
coming  from  so  important  a  body,  possesses  a  special  value. 

What  architect,  contractor  or  engineer  is  there,  of  any 
mature  experience,  who  cannot  recall  at  least  one  technical  case 
which  would  have  been  better  determined  by  the  arbitration 
of  practical  men  rather  than  by  a  suit?  Is  it  not  safe  to  say 
it  would  have  been  settled  more  quickly,  more  economically, 
and,  with  all  due  respect  for  the  law,  more  satisfactorily,  per- 
haps, to  the  disputants? 

Just  now  we  seem  to  be  living  in  what  might  well  be  de- 
scribed as  the  "Age  of  Arbitration,"  the  only  method,  it  would 

8 


appear,  of  adjusting  our  differences.  Regulated  by  statute  as 
it  is,  it  results  in  prompt  and  fairly  equitable  settlements,  and, 
it  may  be  said,  without  causing  that  bitterness  of  feeling  so 
often  apparent  in  suits  at  law.  It  is  a  practical  solution  of  the 
difficulty  which  our  respected  judges  experience  in  their  efforts 
to  hear  and  determine  building  disputes  fairly.  Technical  and 
practical  men,  however,  understand  the  technique  of  such  dis- 
putes, and  can  follow  every  point  of  the  testimony,  wherever 
it  may  lead,  and  then  reason,  we  may  say,  takes  the  place  of 
those  technicalities  which  seem  to  be  so  inseparable  from  court 
practice. 

The  author  has  profound  respect  for  the  painstaking  judge, 
the  one  who  endeavors  to  grasp  the  thousand  and  one  technical 
points  which  arise  in  construction  suits,  and  no  disrespect  what- 
ever is  intended  nor  inferred;  but  it  does  happen  sometimes 
that  neither  the  court  nor  the  disputants'  attorneys  have  a 
sufficiently  accurate  perception  of  the  true  construction  or  the 
meaning  of  the  drawings,  sections,  details,  specifications,  etc., 
to  say  nothing  of  the  usual  methods  of  working  on  a  structure, 
trade  customs,  and  other  matters  which  most  of  us  become  fa- 
miliar with  by  actual  daily  contact,  nor,  indeed,  can  it  be  ex- 
pected they  should  be.  It  must,  however,  be  very  difficult  to 
give  fair  decisions  without  such  knowledge,  and  so  it  happens 
sometimes,  notwithstanding  the  great  skill  and  care  displayed 
by  the  court  and  counsel,  that  much  of  the  technique  in  evidence 
is  but  partially  understood,  and  testimony  that  might  be  brought 
out  under  a  technical  tribunal  is  lost.  The  expert,  or  rather 
technical,  witness,  sometimes  meets  with  and  recognizes  just 
such  conditions. 

A  building  dispute,  such  as  that,  for  example,  which  may 
arise  when  an  owner  declines,  for  some  reason,  to  pay  for  work 
performed,  may  be  arbitrated  by  the  terms  of  the  contract  or 
by  subsequent  mutual  consent.  This  brings  some  advantages 
immediately.  There  is  no  waiting;  the  "trial"  commences  im- 
mediately, and  quick  settlement  follows,  the  author  thinks,  with 
better  results  than  in  court  practice,  for  the  reason  that  all  the 
facts  are  still  fresh  in  the  minds  of  the  parties  and  their  wit- 
nesses. This  very  point  was  once  well  illustrated  in  the  author's 

9 


own  practice.  During  the  preparation  of  the  first  edition  of  this 
manual  he  was  subpoenaed  to  give  testimony  in  a  suit  regarding 
the  quantity  of  certain  work  performed  in  a  building.  The 
claim  originally  was  for  $400  odd.  The  case  had  been  on  the 
calendar  nearly  three  years,  and  the  testimony  on  final  hearing 
was  much  in  conflict,  owing,  I  believe,  to  conscientious  inability 
on  the  part  of  the  witnesses  to  remember  just  what  the  facts 
were.  Arbitration  three  years  before  would  have  saved  money, 
much  time  and  some  vexation. 

Again,  in  court  a  jury  is  apt  to  attach  undue  importance 
to  a  large  number  of  witnesses,  but  a  few  good  men  of  known 
honesty  and  ability  are  more  convincing  to  the  technical  arbi- 
trator, who  himself  possesses  that  practical  experience  and 
judgment  essential  to  an  equitable  decision.  He  also  knows 
what  portion  and  how  much  of  such  evidence  may  be  properly 
accepted  or  rejected.  This  is  one  argument  in  favor  of  arbitrat- 
ing technical  disputes,  and  even  a  stronger  argument  why  the 
architect,  the  contractor  and  the  engineer  should  understand 
the  fundamental  principles  of  Arbitration,  and  their  application 
in  the  settlement  of  disputes  concerning  their  particular  spheres 
of  work.  Arbitration  is  perhaps  one  of  the  most  practical  of 
subjects  in  the  statutes,  easily  understood  and  readily  applied, 
a  further  knowledge  of  which  might  well  form  part  of  our  pro- 
fessional and  business  training,  enabling  us  to  occupy  with  more 
usefulness  to  our  fellow  man  and  credit  to  ourselves,  the  hon- 
ored position  of  technical  arbitrator  when  the  necessities  of  our 
work  or  duty  demand  it. 

A  court  trial  differs,  of  course,  from  one  held  before  tech- 
nical judges.  In  the  former,  witnesses  are  always  entitled  to 
be  considered  as  truthful  until  proved  otherwise.  The  Court 
knows  nothing  personally  of  the  weight  which  might  be  at- 
tached to  their  technical  testimony  beyond  that  which  appears 
on  the  face  of  what  has  been  put  into  words,  whereas  technical 
men,  or  even  mechanics,  as  witnesses,  when  testifying  before  a 
technical  tribunal  would  in  all  probability  be  personally  known 
by  one  or  more  of  the  arbitrators,  and  the  witnesses'  reputation 
for  honesty,  as  well  as  technical  knowledge,  could  be  considered 
and  placed  at  its  real  value  after  making  such  allowances  as 

10 


may  seem  proper.  In  other  words,  their  evidence  could  be 
sifted,  so  to  speak,  and  a  proper  value  attached  to  that  which 
was  pertinent  to  the  issues. 

With  an  arbitration  the  hour  and  place  of  hearing  may  be 
fixed  with  some  regard  to  suit  the  convenience  of  the  parties 
and  their  witnesses;  for  example,  sessions  may  be  fixed  for 
evenings  or  other  times  out  of  the  ordinary  business  hours. 
Such  a  concession  cannot,  of  course,  be  expected  from  the  regu- 
lar courts.  Then,  again,  there  is  more  opportunity  and  lati- 
tude for  producing  rebuttal  evidence;  but  in  court  practice,  if 
the  best  and  strongest  testimony  be  not  produced  according  to 
the  rules  of  procedure,  the  opportunity  of  doing  so  may  be  lost. 
Again,  there  is  less  risk  of  one  side  being  overthrown  by  sur- 
prise testimony,  as  sometimes  occurs  in  court.  Technical  arbi- 
trators have  a  way  of  getting  down  to  the  facts.  They  go  at 
once  to  the  very  essence  of  the  dispute,  and  are  not  hampered 
by  precedent,  cases  or  court  rules.  In  short,  they  quickly  get 
to  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  with- 
out formality  or  hindrance,  and  are  then  able  to  render  judg- 
ment according  to  the  testimony  coupled  with  their  own  tech- 
nical knowledge  in  a  common-sense,  business-like  manner,  and 
their  decisions  are  usually  accepted  in  good  grace  by  the 
disputants. 

Occasionally  one  hears  it  alleged  that  arbitrators  may  be 
uncertain  judges,  admitting  evidence  of  a  certain  nature  at  one 
time  and  rejecting  it  at  another,  or  that  they  are  liable  to  in- 
consistency regarding  the  weight  of  evidence  presented,  or 
that  they  may  be  unduly  firm  and  hard  to  convince  today,  and 
yet  tomorrow  may  be  unnecessarily  yielding,  and  so  forth. 
Care  should,  of  course,  be  exercised  to  guard  against  these  in- 
consistencies. Years  ago  there  might  have  been  some  grounds 
for  these  charges,  but  the  arbitration  idea  is  fortunately  now 
getting  such  a  hold  on  the  people  that  the  tendency  to  such 
mistakes  has  become  much  modified  of  late  years.  Such  ob- 
jections certainly  do  not  hold  good  where  arbitrators  are  men 
of  experience.  It  is  unreasonable  to  assert  that  arbitration  is 
good  provided  the  arbitrators  are  perfect.  Would  is  not  be 
equally  as  reasonable  to  assume  that  the  courts  are  good  only 
if  every  judge  is  perfect?  It  is  doubtful  whether  His  Honor 

11 


himself  would  maintain  that  this  condition  has  always  existed, 
though  it  is  very  far  from  the  author's  intention  to  cast  the 
least  reflection  upon  the  honorable  and  experienced  judges  in 
our  courts. 

There  are  probably  cases,  even  with  arbitration,  where  the 
parties  to  a  submission  are  no  more  satisfied  with  the  award 
than  they  would  have  been  with  a  court  decision  after  trial 
lasting  a  year  or  two.  Such  dissatisfaction  arises  very  often 
from  an  incorrect  estimate  of  the  real  purposes  of  arbitration, 
but  this  neither  proves  nor  disproves  anything.  Some  parties 
may  occasionally  cherish  a  grievance  unless  they  are  awarded 
the  whole  or  nearly  all  of  whatever  they  choose  to  claim,  but 
this  in  no  way  affects  injuriously  the  great  advantage  which 
arbitration  possesses  over  law  suits  in  adjusting  technical  dis- 
putes. Fair-minded  contractors  and  owners  (and  neither  are 
as  scarce  as  some  people  think)  are  not  only  usually  satisfied 
with  an  award  of  their  fellows,  but  are  more  than  glad  to  get 
their  differences  so  easily  adjusted  and  so  quickly  off  their 
minds  without  resorting  to  an  action  at  law,  and  going  through 
those  experiences  which  such  a  step  implies.  We  have  but  to 
refer  to  the  calendar  to  realize  how  frequently  these  technical 
cases  find  their  way  into  the  courts,  whereas  they  could  be  more 
readily  and  more  satisfactorily  disposed  of  either  in  the  ordinary 
method  of  arbitration,  or  by  assigning  such  cases,  we  will  say, 
to  a  technical  referee,  or  by  arranging  for  their  hearing  by  a 
Court  of  Arbitration. 

In  the  court  trial  of  technical  suits  connected  with  construc- 
tion work,  the  best  technical  witnesses  obtainable  are  in  fre- 
quent demand,  and  the  reason  is  not  far  to  seek.  Indeed,  the 
author  believes  that  the  time  cannot  be  so  far  distant  when  the 
courts  will  realize  the  advantage  of  referring  building  and 
similar  technical  cases  to  competent  technical  judges.  This 
course  prevails  in  some  of  our  large  cities,  with  much  ad- 
vantage. It  also  relieves  the  overcrowded  calendars,  and  in  this 
way  greatly  facilitates  the  work  of  the  courts,  and  the  people 
get  the  benefit. 

The  establishment  of  a  permanent  Court  of  Arbitration,  or 
technical  tribunal,  for  the  hearing  of  building  and  engineering 

12 


disputes  alone,  would,  the  author  believes,  possess  some  distinct 
advantages.  Apart  from  controversies  arising  from  the  con- 
tract systems,  take  the  differences  which  will  sometimes  occur 
between  the  professional  man  and  his  client;  most  of  us  know 
something  of  the  uncertainty  of  submitting  such  differences  in 
court  to  a  jury  of  laymen.  These  cases  should  be  invariably 
adjusted  by  technical  men  familiar  with  custom  and  equity  in 
such  cases. 

Or,  if  this  should  be  considered  too  sweeping  a  change  in 
our  judiciary  methods,  then  perhaps  a  particular  judge  might 
be  set  apart,  and  be  given  a  special  court  to  try,  in  conjunction 
with  two  or  more  architects,  contractors  or  engineers  (who 
would  sit  in  bank  with  him),  the  special  classes  of  cases  under 
consideration. 


CHAPTER  THREE 

Arbitration:  Its  Place  in  the  Work  of  the  Architect,  Contractor 

and  Engineer 

In  no  direction  probably  has  the  spread  of  the  principles 
of  arbitration  been  greater  in  recent  years  than  in  connection 
with  the  carrying  out  of  contract  building  and  engineering  work. 
At  any  time  now  the  architect,  contractor  and  engineer  is  likely 
to  be  called  upon  to  apply  these  recognized  principles,  and  yet 
it  is  the  exception  rather  than  the  rule  to  find  the  subject  even 
mentioned  in  our  literature  upon  Construction.  Legal  works 
exist  for  the  use  of  and  reference  by  our  friends  the  attorneys, 
and  the  digests  contain  many  cases  and  decisions  arising  out 
of  arbitrations  more  or  less  properly  conducted,  the  most  fre- 
quent examples  of  cases  consisting  of  the  efforts  of  one  of  the 
parties  to  cause  the  setting  aside  or  vacation,  of  an  award ;  but 
there  seems  to  be  very  little  available  in  an  easy-for-reference 
manner  adapted  to  the  layman's  needs,  and  this  may  account, 
in  a  measure  perhaps,  for  the  want  of  familiarity  with  arbitra- 
tion methods  one  occasionally  observes  when  attending  arbi- 
trations. 

13 


No  class  of  men,  probably,  are  more  competent  on  the 
whole  and  technically  to  act  as  arbitrator  or  umpire  in  the 
adjustment  of  building  and  engineering  differences  than  the  ex- 
perienced architect,  contractor  or  engineer,  and  in  view  of  the 
increasing  popularity  of  arbitration  along  these  special  lines 
of  work  there  are  increasing  opportunities  for  the  employment 
of  such  technical  arbitrator,  and  undoubtedly  the  demand  for 
experienced  judges  in  this  particular  sphere  will  increase  ma- 
terially as  time  goes  on;  and  consequently,  upon  general  prin- 
ciples, we  can  all  with  perfect  consistency  urge  the  adoption  of 
arbitration  for  the  settlement  of  nearly  every  case  of  disagree- 
ment which  occurs  in  the  carrying  out  of  contracts,  upon  the 
grounds  of  economy,  saving  of  time,  equitable  adjustments,  and 
general  expediency. 

The  suggestion  is  occasionally  made  that  an  attorney  would 
make  a  more  satisfactory  arbitrator  than  a  layman,  it  being 
alleged  that  a  legal  mind  is  more  competent  to  judge  as  to  what 
is  proper  evidence  and  the  best  method  of  obtaining  and  present- 
ing it.  If  technical  disputants  desire  (which  they  are  less  in- 
clined to  do  every  year)  their  differences  settled  purely  from  the 
legal  aspect,  they  would  not  accept  arbitration  as  readily  as 
they  do.  The  questions  which  most  frequently  come  up  before 
arbitration  tribunals  are  not  questions  of  law,  but  of  fact,  con- 
troversies concerning  construction,  value  of  builders'  work, 
drawings,  details,  trade  customs  or  some  such  matter  which 
the  technical  arbitrator  usually  has  at  his  fingers'  ends,  and 
he  can  therefore  personally  decide  what  is  right  and  proper  to 
be  done  under  varying  conditions  and  circumstances.  The  author 
has  serious  misgivings  whether  among  his  legal  acquaintances 
there  is  even  one  who  would  doubt  the  value  of  the  technical 
knowledge  of  the  competent  architect,  contractor  or  engineer 
when  it  comes  to  investigating  and  deciding  upon  the  merits 
of  technical  disputes  arising  in  their  own  particular  lines  of 
work. 

The  principles  of  arbitration  should  form  part  of  the  cur- 
riculum of  our  universities,  colleges  and  technical  schools.  Cer- 
tainly peace  is  more  important  than  war.  It  is  less  expensive 
and  more  manly.  Indeed  arbitration  should  be  more  generally 

14 


applied  in  all  affairs  among  business  men,  when  honest  differ- 
ences arise  upon  questions  of  fact. 


CHAPTER  FOUR 
Arbitrators:  Their  Qualifications,  Duties,  Etc. 

A  disputant  may  nominate  any  person  as  his  arbitrator,  for 
every  person  possesses  the  natural  right  to  select  whom  he 
pleases  for  his  private  judge;  but  in  seeking  to  avail  himself  of 
this  right  he  should  use  care  and  discretion,  such,  for  example, 
as  might  be  displayed  in  the  selection  of  a  juryman.  The  per- 
son so  selected  must  declare  his  acceptance  of  the  office  and 
agree  that  he  will  faithfully,  fully,  and  fairly  hear  the  allega- 
tions and  evidence,  and  make  a  just  and  true  award  according 
to  his  best  understanding. 

Building  contracts  usually  provide  for  the  appointment  of 
one  arbitrator  by  the  owner  and  one  by  the  contractor,  these  two 
to  select  a  third  arbitrator,  or  umpire.  The  author,  however, 
seriously  questions  the  advisability  of  this  method  in  the  in- 
terests of  impartiality  and  justice,  for  there,  is  always  the  danger 
that  one,  and  perhaps  even  the  second,  arbitrator  might  assume 
the  attitude  of  an  advocate  for  the  party  who  selected  him  or 
them.  It  would  appear  that  if  more  than  one  arbitrator  were 
selected  (in  such  a  case  jointly  by  both  parties),  it  would  be 
better  for  the  two  parties  to  agree  upon  three  arbitrators  at 
the  outset.  Then  each  would  feel  that  if  acting  at  all  for  the 
parties  it  would  be  for  them  all  equally,  and  the  tendency  some- 
times shown  towards  partisanship  would  have  no  cause  to  exist. 
Arbitrators  must  not  attempt  to  be  advocates  and  judges  at 
one  and  the  same  time.  Where  two  arbitrators  are  unable  to 
agree  and  they  appoint  a  third,  or  umpire,  it  becomes  prac- 
tically a  one-man  arbitration,  just  the  same. 

In  matters  of  disputed  accounts  mercantile  men  are  often 
selected,  in  other  cases  attorneys  at  law.  In  building  and  en- 

15 


gineering  disputes,  such  as  we  have  under  consideration,  the 
logical  arbitrator  is  the  architect,  contractor,  or  engineer,  de- 
pending upon  the  exact  nature  of  the  dispute. 

An  arbitrator's  chief  qualifications  are  honesty  of  purpose 
and  action,  impartiality,  good  judgment,  clear-headedness,  and 
patience,  the  ability  to  listen  rather  than  to  talk.  He  should 
be  absolutely  free  from  any  possible  bias,  open-minded,  broad, 
lenient  towards  the  peculiarities  of  men.  He  should,  when  act- 
ing as  an  arbitrator,  be  above  accepting  any  favors,  however 
slight,  and  not  even  any  part  of  his  legitimate  compensation 
prior  to  the  award.  The  accepting  of  hospitality  or  refreshments 
from  one  of  the  parties  is  prejudicial,  and  may  be  sufficient  to 
justify  the  attempt  of  a  dissatisfied  party  to  upset  the  award. 
All  such  acts  are  liable  to  misconstruction,  should  the  matter 
be  ultimately  taken  into  court,  or  otherwise,  even  though  no 
evil  or  corrupt  act  was  intended.  In  short,  it  is  highly  improper 
for  arbitrators,  when  acting  as  such,  to  accept  favors  from  any 
person  directly  or  indirectly  interested,  and  they  cannot  be  too 
discreet  in  speech  and  conduct  if  they  wish  to  preserve  their 
award  from  attack. 

If  a  person,  when  asked  to  act  as  an  arbitrator,  has  any 
business  connections  with  either  party  to  the  dispute,  or  if  in 
the  least  unfriendly  disposed  to  the  opposite  party,  it  would 
be  better  for  him  to  announce  the  fact  or  decline  to  act.  Some 
authorities  declare  that  an  arbitrator  should  not  be  related  to 
either  party;  but  if  this  is  known  to  the  other  side,  and  no 
objection  is  raised,  and  the  nominee  is  otherwise  disinterested 
and  competent,  then  there  would  seem  to  be  no  valid  reason 
why  he  should  not  act;  and  the  same  would  apply  in  cases 
where  either  of  the  parties  happen  to  be  debtors  or  creditors 
of  a  suggested  arbitrator.  Building  disputants  should  beware 
of  nominating  persons  already  prejudiced  in  their  favor,  or 
who  may  have  any  secret  interests  with  either  party,  or  if  their 
minds  are  already  made  up  concerning  the  dispute.  Indeed, 
in  such  a  case  the  subsequent  proceedings  would  be  a  farce, 
not  arbitration. 

Above  all,  in  cases  where  the  submission  is  made  an  order 
of  the  court,  the  arbitrator  should  remember  that  he  is,  for  the 

16 


time  being,  an  officer  of  the  court.  His  mind  must  at  all  times 
be  open  to  honest  conviction ;  any  disposition  to  stubbornness 
or  laxity  should  be  carefully  avoided  and  perhaps  even  more 
so  if  he  be  called  upon  to  act  as  an  umpire.  He  should  have, 
so  to  speak,  a  semi-judicial  mind,  be  systematic,  of  a  practical 
rather  than  of  an  ethereal  and  vacillating  temperament,  and  be 
guided,  so  far  as  his  ability  permits,  by  the  same  principles 
which  govern  a  jury  in  arriving  at  a  verdict.  The  first  duty 
of  an  arbitrator  is  to  qualify  (see  Form  D)  before  an  officer 
of  the  court  authorized  to  administer  oaths,  usually  a  notary 
public  (M.  E.  Church  vs.  Seitz,  74  Cal.,  287;  15  Pac.,  732).  The 
umpire,  if  called  in,  must  be  similarly  sworn.  (See  also  Chapter 
Five,  mode  of  Procedure.) 

It  is  the  arbitrator's  duty  to  appoint  a  time  and  place  of 
hearing,  to  notify  the  parties  (see  Form  F),  to  adjourn  upon 
motion  as  often  as  necessary,  give  due  notice  as  to  continuance 
of  the  hearing,  the  time  and  place  for  the  next  hearing,  and 
so  forth.  Arbitrators  must  allow  a  reasonable  time  when  fix- 
ing a  date  for  hearing,  in  order  that  both  parties  may  be  ready 
to  present  their  respective  claims  and  testimony. 

There  is  no  place  in  arbitration  for  any  Shylock  practices. 
Arbitrators  should  not  decide  until  every  piece  of  testimony  has 
been  presented  and  considered,  and  they  must  be  patient  and 
listen  to  all  that  is  said.  It  should  be  borne  in  mind  that  any 
decisions  arrived  at  after  long  and  patient  hearings  are  the 
most  likely  to  be  just,  and  therefore  acceptable  to  the  parties 
in  interest.  Any  attempt  to  pass  judgment  upon  matters  out- 
side those  named  in  the  submission,  or  to  extend  the  arbitrator's 
authority  beyond  the  terms  thereof,  is  without  legal  force,  and 
if  done  may  injure  the  award.  The  duties  of  an  arbitrator  must 
not  be  delegated  to  a  second  person.  If,  however,  the  opinion 
or  knowledge  of  any  person — for  example,  an  independent  at- 
torney, or  an  expert — is  necessary  to  "confirm"  the  arbitrator's 
own  individual  opinion  or  understanding,  it  is  allowable  to  obtain 
such  assistance,  but  care  must  be  taken  not  to  follow  blindly 
such  a  person's  advice,  opinion,  or  knowledge.  It  is  in  a  simi- 
lar way  permissible,  when  necessary,  for  an  arbitrator  to  fortify 

17 


his  own  opinion  by  consulting  outside  parties  regarding,  for 
example,  matters  of  construction,  prices,  etc.,  but  this  also  should 
be  done  with  some  caution,  for  as  a  matter  of  principle  it  may 
be  dangerous  to  go  outside  for  evidence,  and  it  is  usually  safer 
in  the  end  to  obtain  such  information  by  placing  the  persons 
upon  the  witness  stand  in  the  regular  way. 

Any  architect,  building  contractor  or  engineer  who  is  other- 
wise qualified,  should  never  hesitate  to  act  as  a  Building  Arbi- 
trator or  Umpire.  As  an  impartial  judge  between  disputants,  it 
is  a  great  compliment  to  be  invited  to  fill  such  an  honored  posi- 
tion. It  is  a  most  useful  office,  and  he  who  fills  it  with  fair- 
ness to  others  is  entitled  to  the  gratitude  of  his  fellow  men, 
entirely  apart  from  the  modest  compensation  which  may  be  his. 

Arbitrators  should  never  permit  parties  to  a  submission  to 
influence  them  in  the  nomination  of  persons  to  act  as  umpire. 
The  selection  lies  with  the  arbitrators  alone,  and  it  makes  no 
difference  whether  the  parties  to  the  Submission  are  or  not 
satisfied  with  the  umpire  selected.  And  here  is  an  important 
point  that  must  not  be  overlooked :  the  umpire  must  be  selected. 
He  must  not  be  chosen  by  drawing  lots,  nor  by  the  tossing  up  of 
a  coin,  nor  by  any  other  method  of  chance,  which  has  before 
now  been  done,  when  the  names  of  two  or  more  eligible  parties 
for  umpire  have  been  submitted.  The  appointment  of  the 
umpire  should  be  in  writing  (see  Forms  D  and  E)  by  agree- 
ment between  the  arbitrators. 

A  case  sometimes  occurs  in  which  arbitrators,  although 
acting  in  perfectly  good  faith,  are  unable  to  agree  upon  a  third 
party,  especially  if  the  umpire's  appointment  has  been  left 
until  disagreement  occurs  between  the  arbitrators.  Even  the 
court  itself,  it  seems,  would  be  without  powers  to  compel  an 
arbitrator  to  accept  any  particular  person  as  an  umpire.  The 
author  once  had  such  a  case.  The  conditions  were  such  that 
it  was  impossible  to  agree  upon  an  umpire.  The  co-arbitrator 
was  inexperienced  and  stubborn,  and  the  arbitration  had  to  be 
ultimately  abandoned;  suit  followed,  and  in  due  course  (nearly 
two  years  later)  judgment  was  rendered  in  favor  of  my  co- 
arbitrator's  side,  but  for  about  one-third  of  the  amount  which 

18 


would  probably  have  been  awarded  in  any  fairly  conducted 
arbitration.  This,  however,  forms  a  good  illustration  of  the 
effects  of  stubbornness  on  the  part  of  an  arbitrator,  and  per- 
sons of  this  particular  temperament  should  not  be  nominated  to 
serve  as  arbitrators. 

The  arbitrator  should  not  personally  seek  to  obtain  privately 
any  so-called  inside  information  or  evidence  from  the  parties 
or  their  witnesses.  Should  he,  however,  be  voluntarily  fur- 
nished with  any  such  information  or  message  bearing  upon  the 
matters  under  consideration,  it  is  his  duty  immediately  to  in- 
form his  co-arbitrators  on  all  such  things. 

Arbitrators  will  administer  oaths  (see  Form  H)  to  the 
witnesses,  and  above  all  things  they  must  act  together;  this 
is  imperative  in  all  things.  The  majority  may  determine  any 
question ;  in  other  words,  two  may  do  any  legal  act  which  three 
have  authority  to  do  under  the  terms  of  the  submission. 

They  must  decide  ALL  the  matters  in  controversy,  omit- 
ting to  consider  nothing,  and  leaving  nothing  in  doubt  or  un- 
decided. Each  arbitrator  should  carefully  study  every  detail 
of  the  case,  however  small,  bearing  fully  in  mind  well-known 
trade  customs  and  precedents  if  any  bear  upon  the  questions, 
and  leave  nothing  undone  that  will  assist  in  forming  a  proper 
decision.  Still,  it  cannot  be  too  strongly  emphasized  that  arbi- 
trators are  not  advocates,  nor  mediators  for  any  one  party. 

The  author  has  met  inexperienced  arbitrators  whose  sole 
idea  of  their  duty  and  position  seemed  to  be  to  "fight  for"  and  to 
take  everything  in  sight,  or  out  of  sight,  for  the  party  who 
nominated  them,  thus  violating  their  oath,  of  course,  to  hear 
fairly  the  allegations  and  to  make  a  just  and  true  award  ac- 
cording to  their  understanding.  Such  a  proceeding  becomes  a 
travesty  upon  the  true  intention  of  arbitration.  An  arbitrator 
should  be  selected  for  his  integrity  and  honesty,  and  not  be- 
cause of  his  willingness  or  desire  to  help  his  friend.  He  is 
chosen  to  do  what  is  right — or  he  should  be. 

It  is  not  the  duty  of  an  arbitrator,  after  assuming  his  duties, 
to  suggest  compromise  to  either  party,  but  he  must  perform 
his  duties  in  the  manner  he  is  sworn  to  do.  It  is  permissible 

19 


for  arbitrators,  in  settling  disputes,  to  make  such  mutual  con- 
cessions between  themselves  as  may  be  just  and  proper,  but  they 
must  not  decide  upon,  and  do,  such  acts  against  their  own  in- 
dividual judgment. 

The  authority  of  arbitrators  terminates  immediately  upon 
their  giving  notice  to  the  parties  of  their  inability  to  make  an 
award  under  the  term  of  the  submission,  or  upon  the  death  of 
one  of  them  if  it  occurs  before  an  award  has  been  made. 

The  duties  of  arbitrators  being  judicial  in  their  nature,  they 
cannot  be  held  for  damages  for  failure  to  exercise  care  or  skill 
in  the  performance  of  their  functions. 

Regarding  the  powers  of  arbitrators,  they  occupy  for 
the  time  being  a  position  similar  to  that  of  the  Judges  of  the 
Superior  Court.  They  should  endeavor,  as  far  as  possible  or 
desirable,  to  arrive  at  correct  conclusions  by  the  same  rules  as 
would  have  governed  the  court  for  which  they  have  been  tem- 
porarily substituted. 


CHAPTER  FIVE 
Submitting  Matters  in  Dispute  to  Arbitration — the  Submission 

The  first  step  is  for  the  disputing  parties  to  enter  into  an 
agreement  whereby  they  consent  to  the  provisions  therein,  and 
not  only  to  arbitrate  their  differences,  but  agree  to  stand  to  and 
abide  by  the  award,  or,  in  other  words,  to  obey  and  perform 
all  orders,  decisions  and  judgments  of  the  arbitrators  as  cov- 
ered by  the  award.  This  agreement  is  technically  known  as 
the  "Submission"  (see  Form  C),  and  the  subsequent  award 
depends  largely  upon  its  terms  and  conditions.  It  should  be 
a  perfectly  clear  statement  and  instruction  to  the  arbitrators  as 
to  the  true  intentions  of  the  parties  and  of  the  duties  he  has 
to  perform.  It  must  clearly  set  forth  the  exact  subject  matter  of 
the  reference,  so  that  the  award  may  be  made  perfectly  clear 
and  in  accordance  therewith,  so  that  the  arbitrator  may  not 

20 


exceed  the  proper  limits  of  his  authority.  The  exact  form  or 
wording  of  a  submission  is  in  one  sense  immaterial,  provided 
that  it  is,  according  to  statute,  made  perfectly  clear  that  the 
parties  did  intend  to  arbitrate,  and  that  they  stated  just  what 
was  to  be  arbitrated  between  them,  and  that  the  arbitrator's 
decision  should  be  the  award.  The  law  implies  that  the  parties 
agree  to  abide  by  the  award  whether  this  is  specifically  men- 
tioned or  not. 

As  the  submission  is  an  important  instrument,  however,  its 
preparation  requires  care,  and  this  is  sometimes  attended  to  by 
the  attorneys  of  the  parties,  particularly  if  the  controversies 
are  of  an  unusually  complicated  nature.  For  an  ordinary  arbi- 
tration, however,  the  submission  is  quite  often  drawn  up  by  a 
notary,  or  by  the  prospective  arbitrators  (in  the  same  way  as 
they  may  later  on  prepare  an  award),  provided  it  be  done  in 
accordance  with  the  Code,  and  reference  should  be  made  in  the 
submission  to  the  statute  under  which**  the  arbitration  is  con- 
ducted. But  if  this  document  is  prepared  by  an  attorney,  I 
have  found  it  no  disadvantage  for  the  arbitrators  to  be  acquainted 
with  the  fundamental  principles  involved,  and  it  is  these  only 
which  we  have  under  consideration.  The  author's  experience 
has  been  that  attorneys  are  always  willing  to  consider  carefully 
any  suggestions  made  by  those  who  have  had  practical  experi- 
ence with  arbitrations.  The  essential  point  is  not  so  much  in  the 
technical  knowledge  necessary  to  prepare  arbitration  documents 
as  it  is  to  so  present  the  facts  to  the  disputing  parties  and 
others,  so  that  they  shall  prefer  arbitration  in  place  of  resist- 
ing technical  claims  by  suits  at  law.  Indeed,  it  does  not  seem 
that  one's  professional  ethics  or  business  methods  would  be 
seriously  violated  if,  at  every  suitable  opportunity,  architects, 
contractors,  and  engineers  were  to  give  prominence  to  the  ad- 
vantages of  arbitration  over  actions-at-law  in  all  matters  of 
technical  dispute. 

If,  proceeding  under  the  provisions  of  the  Code  (and  the 
author  suggests  this  is  the  only  satisfactory  way  to  proceed), 
the  submission,  which  is  equivalent  to  pleadings  in  court  trials, 
must  be  in  writing  if  it  is  to  be  entered  as  an  order  of  the  Supe- 
rior Court.  This  is  done  by  filing  the  executed  document  with 

21 


the  Clerk  of  the  county  in  which  one  of  the  parties  resides,  and 
paying  the  filing  fee.  A  note  of  the  filing  of  the  submission 
must  thereupon  be  entered  by  the  County  Clerk  in  the  Register 
of  Actions,  as  held  in  the  case  of  Kettleman  vs.  Treadway,  65 
Cal.,  505.  The  mere  authority  to  file,  without  the  act,  is  in- 
sufficient, but  by  inspecting  the  Register  of  Actions  an  arbi- 
trator may  always  satisfy  himself  that  this  has  been  done.  The 
entry  should  contain  the  necessary  particulars — for  example,  the 
names  of  the  arbitrators,  and  the  time  limited  by  the  submis- 
sion, if  any,  within  which  the  award  must  be  made.  After  such 
entry  has  been  made  a  submission  cannot  be  revoked  without 
the  consent  of  both  parties,  or  by  leave  or  order  of  the  court. 
But  in  the  case  of  the  California  Academy  of  Sciences  vs. 
Fletcher,  99  Cal.,  207,  it  would  appear  that  the  word  "there- 
upon" does  not  necessarily  mean  immediately,  for  in  this  case 
such  entry  was  not  completely  made  until  nineteen  days  after 
the  award  was  made  and  filed,  but  it  was  held  that  jurisdiction 
did  exist  to  enter  judgment  upon  the  award,  which  was  done. 
We  see,  therefore,  that  the  submission  may  be  filed  at  any  time 
before  judgment  is  entered  upon  the  award. 

Valid  verbal  submissions  may  be  made.  They  possess  dis- 
advantages, however,  like  other  verbal  agreements;  moreover, 
they  cannot  be  made  an  order  of  the  court,  and  the  award,  when 
made,  is  under  a  similar  disadvantage. 

In  a  general  way,  any  person  legally  capable  of  making  a 
contract  may  submit  controversies  to  arbitration,  but  it  should 
be  remembered  that  a  single  partner  cannot  bind  his  co-part- 
ners to  arbitration  unless  they  have  wholly  abandoned  the  busi- 
ness to  him  or  are  incapable  of  acting.  (Sec.  2430,  C.  C.  P.) 
The  case  of  Jones  vs.  Bailey,  5  Cal.  345,  has  a  good  decision 
on  this  point. 

Corporations  or  firms  must  execute  a  submission  in  the 
same  formal  manner  as  they  would  any  deed  or  similar  instru- 
ment under  the  corporate  seal,  and  by  the  signatures  of  the 
duly  authorized  officers  of  the  company. 

Amendments,  if  necessary,  to  submissions  must  be  made 
prior  to  the  first  hearing.  Grounds  for  revocation  of  a  submis- 

22 


sion   are,  the  death  of  one  of  the  parties,   undoubted  bias  or 
misconduct  on  the  part  of  an  arbitrator,  or  his  refusal  to  proceed. 

Should  it  be  desired  to  revoke  a  submission,  then  such  in- 
tention by  the  parties  should  be  embodied  in  an  instrument 
executed  in  the  same  manner  as  the  original  submission.  There 
are,  however,  decisions  supporting  the  doctrine  that,  a  submis- 
sion once  made  a  rule  of  the  court,  is  irrevocable  without  leave 
of  the  Court.  (Cal.  Academy  of  Sciences  vs.  Fletcher,  99  Cal., 
207;  33  Pac.,  857.)  An  agreement  between  the  parties  in  the 
submission,  not  to  revoke,  does  not  finally  destroy  revocability. 
If  the  submission  be  not  made  an  order  of  the  court,  it  may  be 
revoked  at  any  time  before  the  award  is  made.  The  disad- 
vantage of  that  method  is  obvious. 

The  submission  should  set  a  date  upon  which  the  award  is 
to  be  made  and  published,  and  such  date  is,  of  course,  subject 
to  any  reasonable  extension  of  time  actually  necessary.  If 
no  time  is  set,  then  sixty  days  might  not  be  considered  an 
unreasonable  time,  depending  largely,  however,  upon  conditions 
in  each  particular  case.  It  is  better  to  fix  a  date  in  place  of 
saying  so  many  months  hereafter.  (There  is  a  doubt  whether 
lunar  or  calendar  months  are  intended.) 

It  is  advisable  that  the  submission,  and  acceptance  by  arbi- 
trators and  umpire,  be  executed  in  duplicate,  one  of  each  to  be 
filed,  as  already  stated,  and  the  duplicate  copy  to  be  retained  by 
the  arbitrators  for  their  guidance. 

Every  care  should  be  taken  to  state  exactly  what  it  is  that 
is  to  be  arbitrated.  The  author  has  found  it  a  good  plan  to 
have  detailed  schedules  of  each  specific  item  or  claim  which 
each  party  makes  against  the  other,  and  vice  versa,  set  forth 
in  the  submission,  so  as  to  leave  no  possible  room  for  argu- 
ment later  on  during  the  conduct  of  the  arbitration  proceed- 
ings. This  prevents  the  importation  of  foreign  or  other  matters 
by  the  parties  during  the  hearing,  a  practice  which,  if  per- 
mitted, disorganizes  the  procedure,  and  causes,  therefore,  discus- 
sion and  loss  of  time,  also,  consequently,  expense  to  the  dis- 
putants. Apart  from  this,  an  arbitrator  cannot  arbitrate  upon 

23 


any  matter  in  difference  that  is  not  contained  in  the  submission ; 
therefore  every  claim,  pro  and  con,  should  be  set  forth  in  the 
submission. 

When  a  building  contract  provides  that  payment  for  extra 
work  be  submitted  to  arbitration,  the  contractor  should  make 
formal  demand  for  arbitration  before  commencing  suit.  (Scam- 
mon  vs.  Denio,  72  Cal.,  393 ;  14  Pac.,  98.) 

It  must  be  remembered  by  the  layman  that  a  submission 
to  arbitration  cannot,  nor  does  it,  oust  the  jurisdiction  of  the 
court,  nor  is  it  intended  that  it  should ;  and  a  submission  will 
very  properly  be  void  if  its  provisions  are  drawn  with  that 
object  in  view.  An  interesting  case  on  this  is  Loup  vs.  Cal. 
South.  R.  Co.,  63  Cal.,  97. 

It  might  be  well  to  add  a  few  words  regarding  Insurance 
Arbitration.  An  independent  agreement  under  a  policy  of  in- 
surance submitting  the  amount  of  loss  to  appraisement,  is  con- 
sidered as  a  common-law  arbitration.  (Georgia  Home  Insur- 
ance Co.  vs.  Kline,  114  Ala.,  366;  21  So.,  958.) 

It  may  be  of  interest  to  note  also  that  in  reciting  Supreme 
Court  decisions,  "May  on  Insurance,"  page  1176,  says:  "Any 
stipulation,  therefore,  which  merely  looks  to  the  requirement  of 
certain  acts  to  be  done  or  omitted  before  bringing  an  action, 
seems  to  be  valid,  since  such  a  stipulation  not  only  does  not 
oust  the  courts,  but  obviously  contemplates  and  makes  prepara- 
tion for  an  appeal  to  the  courts.  It  is  manifest  that  the  arbitra- 
tion thus  provided  for  is  intended  to  afford  a  simple  and  speedy 
remedy  for  the  settlement  of  disputes  in  regard  to  losses,  and 
to  simplify  proceedings  in  case  of  a  resort  to  the  courts,  and 
is  not  necessarily  to  be  governed  in  all  respects  by  the  rules 
which  apply  to  a  trial  in  court.  An  award  so  arrived  at  is  not 
to  be  lightly  set  aside,  even  though  there  may  have  been  in- 
formalities or  irregularities  in  the  conduct  of  the  proceedings, 
if  it  appears,  or  the  Court  may  have  found,  that  the  arbitrators 
making  the  award  acted  in  all  matters  pertaining  to  the  sub- 
mission in  good  faith,  and  with  an  honest  desire  to  come  to  a 
correct  result.  In  such  a  case  the  award,  it  seems  to  us,  should 
stand." 

24 


From  still  another  interesting  decision  (George  A.  Case  vs. 
Manufacturers  Insurance  Co.,  82  Cal.,  263)  it  appears  that 
where  an  arbitration  clause  in  an  insurance  policy  does  not  fix 
the  number  of  arbitrators,  nor  state  how  they  are  to  be  selected, 
then  there  can  be  no  right  to  arbitration. 

It  would  seem,  however,  in  speaking  of  insurance  matters, 
that  a  "valuation"  is  not  arbitration,  in  the  correct  sense  of  the 
term,  but  rather  an  appraisement  which  prevents  differences, 
and  does  not  really  settle  any  which  may  have  arisen. 


CHAPTER   SIX 
Mode  of  Procedure 

Having  qualified,  the  two  arbitrators  will  arrange  an  early 
meeting  between  themselves  to  discuss  the  mode  of  procedure, 
to  carefully  ascertain  their  powers  and  duties  under  the  terms 
of  the  Submission.  At  this  meeting  may  be  presented  a  list 
of  witnesses  which  the  parties  may  at  that  time  desire  to  call. 
The  arbitrators  should  go  carefully  through  each  claim  made 
by  the  respective  parties,  for  the  purpose  of  clearly  informing 
themselves  as  to  the  matters  in  dispute.  It  is  also  incumbent 
upon  the  arbitrators  to  carry  out  their  duties  with  all  possible 
diligence. 

Should  it  be  apparent,  as  is  frequently  the  case,  that  a 
disagreement  is  pending,  and  if  it  does  actually  occur  between 
the  two  arbitrators,  the  umpire  should  be  immediately  notified 
that  his  services  will  be  required,  and  he  must  qualify  in  the 
same  manner  as  the  two  arbitrators  have  previously  done. 

The  author  considers  that  it  is  better  to  nominate  an  umpire 
at  the  same  time  or  before  the  original  arbitrators  qualify,  even 
though  his  services  are  never  required.  Cases  have  been  known 
where,  after  disagreement  has  occurred,  arbitrators  could  not 
agree  upon  an  umpire. 

Where  two  arbitrators  can  agree,  and  adjust  all  matters 
in  dispute  without  the  umpire  being  called  in,  matters  are,  of 

25 


course,  simplified.  When  the  arbitrators  are  ready  to  proceed 
they  should  serve  a  notice  of  hearing  upon  the  parties  (see 
Form  F),  and  subpoena  witnesses  designated  by  both  parties. 
Where  the  selection  of  an  umpire  is  conditional  upon  disagree- 
ment of  arbitrators,  the  disagreement  need  not  be  a  serious  one, 
but  they  should  not  "agree  to  disagree,"  as  is  sometimes  done; 
they  must  act  in  good  faith  in  all  things.  It  will  be  a  sufficient 
disagreement  if  one  arbitrator  requires  more  evidence  than  the 
other.  Notwithstanding  such  disagreement,  the  two  original 
arbitrators  must  continue  to  act,  hear  testimony,  and  otherwise 
perform  their  duties,  a  majority  of.  the  three,  if  not  all  three, 
joining  in  the  award.  If  all  three  can  afterwards  agree  and 
sign  the  award,  although  not  absolutely  necessary,  it  forms  a 
fitting  conclusion  to  an  arbitration. 

Arbitrators  as  such  are  (although  they  may  even  be  attor- 
neys by  training)  not  expected,  nor  are  they  compelled,  to 
follow  court  methods  or  even  be  familiar  with  them.  They 
may  determine  their  own  course  of  procedure.  They  have  to 
decide  solely  upon  the  facts,  after  hearing  all  the  testimony, 
and  bringing  their  own  technical  knowledge  to  their  aid  in 
arriving  at  a  decision.  They  should  take  notes  of  the  proceed- 
ings, even  though  the  case  may  be  one  of  short  duration  or  of 
minor  importance.  In  more  important  cases  it  is  prudent  to 
arrange  for  stenographic  reports  to  be  taken  and  duly  verified. 

Arbitrators  must,  of  course,  hear  all  the  evidence  on  both 
sides.  Lord  Eldon,  the  eminent  jurist,  once  said:  "By  the 
great  principles  of  eternal  justice,  which  is  before  all  acts, 
regulations,  and  proceedings  of  court,  it  is  impossible  that  an 
award  can  stand  where  arbitrators  hear  one  side  and  decline 
to  hear  the  other." 

The  case  of  Curtiss  vs.  City  of  Sacramento,  62  Cal.,  102, 
presents  an  interesting  decision  on  this  point.  It  is  an  applica- 
tion to  set  aside  an  award  on  the  ground  that  no  opportunity 
was  given  the  parties  to  submit  evidence.  Briefly,  the  point 
arose  in  this  way:  Two  arbitrators  met  without  the  third  one 
and  took  testimony;  the  third  arbitrator  then  arrived  at  his 
decision  by  reading  over  the  notes  of  the  evidence  without  being 

26 


present   when   it  was   given.     The   court   held   that  the  award 
was  invalid  and  void. 

Unless  there  is  proof  to  the  contrary,  the  court  will  presume 
in  favor  of  the  integrity  of  the  arbitrators  and  the  regularity  of 
their  acts.  Neither  party  should  be  allowed  to  speculate  upon 
the  probability  of  his  getting  a  favorable  award,  and  therefore 
if  any  objections  are  to  be  taken  in  the  course  of  procedure  or 
otherwise,  they  should  be  made  at  the  time  the  cause  for  such 
objections  first  occurs;  if  not,  a  waiver  regarding  them  may  be 
reasonably  assumed  by  the  arbitrators.  If  one  of  the  parties 
should  substitute  a  foreman  or  other  representative  in  place  of 
himself  at  a  hearing,  it  would  operate  as  a  waiver  of  objections 
on  his  part  to  the  acts  of  the  arbitrators,  as  illustrated  in  the  case 
of  Foster  vs.  Carr,  135  Cal.,  83;  67  Pac.,  43. 

Should  either  side  wish  to  be  represented  by  counsel  before 
the  Board  of  Arbitration,  the  arbitrators  should  be  notified  in 
good  time,  as  well  as  the  parties  of  the  other  side ;  and  although 
arbitrators  are  not  bound  to  hear  counsel,  it  scarcely  seems 
fair,  to  the  author,  that  there  should  be  a  refusal  to  do  so  within 
proper  limits,  subject  to  the  discretion  of  the  arbitrators.  In 
such  cases  stenographic  reports  of  proceedings  should  always 
be  taken,  and  preserved  until  all  questions  of  dispute  between 

the  parties  are  finally  disposed  of. 

*  / 

In  regard  to  evidence,  all  witnesses  must  be  sworn,  or 
make  affirmation  if  their  religious  or  similar  belief  is  urged  as 
an  excuse  for  not  taking  the  usual  oath.  A  convenient  proceed- 
ing in  opening  an  arbitration  is  as  follows :  The  party  to  begin, 
the  one  who  demanded  arbitration  (equivalent  to  plaintiff  in  a 
court  action),  makes  a  short  statement  of  his  case,  which  may  be 
read  or  given  viva  voce.  He  may  then  proceed  to  call  his  wit- 
nesses to  support  his  statement.  The  other  party  may  then 
make  a  similar  statement,  and  produce  his  witnesses,  and  he 
may  reply  upon  the  entire  claims.  The  party  commencing  is 
then  at  liberty  to  make  general  reply.  All  witnesses  may  of 
course  be  cross-examined  by  the  arbitrators,  and  with  their 
permission  either  party  may  ask  questions  of  the  other  party 
or  his  witnesses,  in  so  far  as  it  may  in  the  arbitrators'  opinion 

27 


be  necessary  to  bring  out  the  truth  or  material  facts.  An  arbi- 
trator is  bound  by  the  same  rules  as  a  judge.  Affidavits  should 
not  be  received  in  lieu  of  viva  voce  testimony.  If  documentary 
evidence  is  submitted,  insist  upon  seeing  originals.  Entries  in 
time  sheets  or  material  books  kept  for  the  benefit  of  one  party 
are  regarded  as  insufficient  evidence,  but  they  may  be  used 
against  him  by  the  other  party  if  the  latter  so  desires.  Such 
evidence  has  about  the  same  value  as  hearsay  evidence,  and 
should  be  accepted  with  reserve,  for  nothing  can  prevent  persons 
from  making  entries  to  suit  themselves,  and  submitting  same 
to  confirm  their  subsequent  statements.  Bookkeepers  or  others 
who  wrote  the  entries  in  books  should  be  called  to  prove  them. 
A  witness,  however,  should  be  permitted  to  refer  to  any  original 
notes  made  by  himself,  or  to  authenticated  copies,  for  the  pur- 
pose of  confirming  or  reinforcing  his  memory.  Drawings,  specifi- 
cations, correspondence,  documents,  etc.,  should  always  be 
identified  by  testimony,  and  conveniently  lettered  for  future 
identification  as  Exhibit  "A,"  "B,"  "C"  and  so  on  before  being 
admitted  as  evidence. 

It  is  clearly  the  duty  of  both  parties  to  use  every  care  and 
diligence  in  obtaining  and  presenting  evidence  in  support  of 
their  claims,  and  in  disproving  incorrect  claims  of  the  other 
parties.  Such  testimony  should  be  brought  in  at  a  proper  stage 
of  the  proceedings.  (Montifiore  vs.  Engels,  3  Cal.,  431.)  If 
one  of  the  parties  rests,  or  omits  to  submit  any  testimony  for 
an  unreasonable  length  of  time,  then  the  arbitrators  may  be 
justified  in  not  again  hearing  such  party. 

The  rules  of  evidence  apply  in  Arbitrations  the  same  as 
before  a  court.  False  testimony,  under  oath,  is  always  abhor- 
rent and  punishable  by  the  statute. 

If  it  should  appear  to  arbitrators,  by  reason  of  any  new 
development  or  otherwise,  that  a  fairer  decision  may  be  arrived 
at,  they  have  ample  power  to  re-open  and  re-consider  any 
matter,  and  they  have  the  right  to  refuse  to  do  so  when  once 
their  decision  has  been  made. 

Either  party  is  entitled  to  apply  to  have  an  arbitration 
stopped  if  it  can  be  shown  that  arbitrators  are  receiving  testi- 

28 


mony  at  a  time  at  which  said  party  had  not  been  notified  that 
testimony  would  be  taken.  Parties  may  also,  if  they  desire, 
abandon  or  repudiate  a  valid  award  by  mutual  consent  by  means 
of  a  subsequent  agreement  to  re-submit  their  differences  to  the 
arbitration  of  the  same  or  different  arbitrators. 

Now  we  will  consider  the  position  of  umpire.  Provision 
is  made  in  many  building  contracts  that  if  the  two  arbitrators 
cannot  agree  they  shall  select  a  third,  or  umpire,  to  act  with 
them.  It  has  been  held  in  Dudley  vs.  Thomas,  23  Cal.,  365, 
that  arbitrators  duly  qualified  may  appoint  the  umpire  at  any 
time  after  such  qualification  and  prior  to  the  making  of  an 
award,  and  it  would  therefore  appear  that  it  is  quite  unnecessary 
to  defer  the  appointment  of  the  umpire  until  disagreement  be- 
tween arbitrators  has  occurred,  although  this  very  provision 
may  be  so  stipulated  in  the  contract  agreement.  At  any  rate, 
in  practice  it  is  found  to  be  a  bad  and  very  inconvenient  con- 
dition in  building  arbitrations,  and  it  would  seem  to  be  better, 
and  quite  proper,  for  the  umpire  to  be  selected  immediately 
after  the  arbitrators  and  before  the  investigation  is  commenced. 
A  convenient  arrangement  is  for  the  umpire  to  sit  with  the 
arbitrators  and  act  as  chairman  of  the  board.  By  so  doing 
he  has  the  advantage  of  not  only  hearing,  but  of  directing  the 
presentation  of,  testimony  from  the  commencement  of  the  pro- 
ceedings ;  and  he  is  thus  prepared,  if  disputes  do  occur,  to  render 
his  decisions  without  putting  witnesses  on  the  stand  twice 
over,  which  would  be  necessary  if  the  two  original  arbitrators 
were  unable  to  agree,  and  which  is  so  frequently  the  case  in 
building  disputes.  The  umpire  should,  however,  refrain  from 
voluntarily  joining  in  any  discussion  between  the  arbitrators 
in  their  efforts  to  agree,  his  duty  being  to  decide  when  appealed 
to  by  them  for  the  reason  that  they  cannot  agree;  in  short, 
his  authority  to  act  does  not  come  until  the  arbitrators  cannot 
agree.  He  must  himself  hear  all  the  testimony  in  relation  to 
any  matters  passed  up  to  him  for  a  decision.  As  has  been 
shown,  it  is  not  sufficient  to  use  the  notes  of  testimony  made 
by  others,  and  it  should  be  remembered  that  the  umpire  does 
not  decide  as  between  the  arbitrators,  but  solely  between  the 
parties  to  the  submission. 

In  the  case  of  a  building  arbitration  to  determine  differ- 

29 


ences  between  partners,  it  would  be  inadvisable  for  laymen 
arbitrators  to  proceed  without  first  taking  counsel's  advice  as 
to  partnership  rights  of  the  parties. 

When  the  testimony  is  all  in,  each  party  should  be  notified 
that  the  hearing  is  about  to  be  closed,  and  the  question  should 
be  asked  whether  they  have  any  further  evidence  to  present,  and 
that  the  arbitrators  will  proceed  to  consider  their  award;  but, 
having  duly  notified  the  parties  from  time  to  time  as  to  the 
place  and  hour  of  hearing,  and  adjournments  thereof,  and  all 
the  evidence  being  in  and  heard  by  each  of  the  arbitrators,  it 
is  not  obligatory  that  they  should  notify  the  parties  of  the  place 
or  hour  at  which  they  will  convene  finally  to  consider  and  de- 
termine the  issues  that  may  remain  undecided;  for,  like  court 
jurors,  they  may  consider  and  make  their  award  in  private, 
and  it  may  be  stated  that  the  courts  make  no  distinctions  be- 
tween the  awards  of  lay  and  legal  arbitrators. 

Finally,  it  should  be  remembered  that  it  is  most  undesirable, 
and  certainly  not  conducive  to  the  final  adjustment,  for  arbi- 
trators to  proceed  in  any  other  than  a  strictly  formal  disinter- 
ested manner,  and  accepting  no  favors  from  either  party  or 
their  witnesses.  Nothing  they  may  do  will  hold  good  unless 
all  have  acted  together.  One  must  not  absent  himself  from  a 
hearing  and  then  accept  what  another  may  say  occurred.  All 
must  act  together. 


CHAPTER    SEVEN 
The  Award 

In  submissions,  one  may  frequently  find  a  clause  to  the 
effect  that  the  parties  agree  not  to  appeal  from  the  award;  but, 
as  has  already  been  stated,  an  arbitration  cannot  oust  the  juris- 
diction of  the  court,  and  such  a  clause  could  in  no  sense  prevent 
it  from  exercising  that  jurisdiction  if  occasion  demands. 

My  knowledge  of  the  statutes  is  insufficient  to  warrant  my 
saying  that  a  Legislature  intended  an  arbitrator's  award  to  be 

30 


absolutely  final  and  beyond  appeal  except  for  fraud  or  mis- 
conduct, but  it  would  appear  that  such  was  the  original  inten- 
tion, and  an  amendment  making  it  so  might  prove  to  be  a  wise 
provision  for  disputants. 

An  award  must  conform  to  the  requirements  of  the  sub- 
mission and  be  made  in  good  faith,  based  upon  justice;  and, 
provided  always  that  the  arbitrators'  acts  have  at  all  times  been 
lawful,  an  award  will  stand  and  may  be  enforced  by  the  court 
in  the  same  manner  as  a  judgment.  If  the  award,  which  should 
be  in  writing,  is  an  equitable  decision,  founded  upon  reason, 
and  even  though  the  actual  law  in  the  premises  is  entirely  dis- 
regarded, the  award  would  not  in  consequence  be  rendered 
invalid  or  void.  The  statutory  requirements,  however,  must 
be  observed  if  judgment  is  to  be  entered  upon  the  award,  or 
the  latter  may  be  successfully  attacked. 

The  award,  of  course,  must  not  be  prepared  until  all  the 
testimony  is  in  and  the  enquiry  is  closed.  It  should  state  that 
all  the  evidence  has  been  heard  ancl  that  all  the  disputed  matters 
have  been  determined  and  closed,  otherwise  the  award  is  liable 
to  be  held  defective  and  set  aside.  When  the  submission  has 
been  made  an  order  of  the  court,  then  the  award,  which  must 
in  such  cases  be  in  writing,  may  be  filed  with  the  clerk  of  the 
county,  who  will  make  a  note  of  it  in  his  register,  and  upon  the 
expiration  of  the  required  time  (usually  five  days)  thereafter, 
and  upon  application  by  one  of  the  parties,  who  will  make 
affidavit  that  a  notice  of  the  filing  of  the  award  has  been  served 
upon  the  other  party  four  days  prior  to  such  application  being 
made,  and  that  no  order  staying  entry  of  judgment  was  out- 
standing, then  -the  award  shall  be  entered  by  the  clerk  as  a 
judgment,  having  the  full  force  and  effect  of  a  court  judgment. 
(Sec.  1286  Cal.,  C.  C.  P.)  There  can  be  no  appeal  from  a  judg- 
ment entered  before  a  motion  is  made.  The  court,  upon  motion 
by  one  of  the  parties,  may  modify  or  correct  an  award  under 
certain  circumstances — for  example,  in  the  case  of  obviously 
incorrect  calculation  of  figures,  or  a  faulty  description  of  a 
person,  or  of  real  estate,  or  where  an  award  included  matters 
which  are  not  a  part  of  the  matters  submitted  to  arbitration, 
and  so  forth  (See  Sec.  1288,  Cal.  C.  C.  P.),  but  the  greatest  care 

31 


is  necessary  in  writing  out  the  award,  for  it  cannot  be  legally 
altered  by  the  arbitrators,  even  to  correct  errors.  A  verbal 
award,  in  other  respects  good,  would  not  be  invalid,  but  among 
its  disadvantages  judgment  cannot  follow  its  publication,  nor 
indeed  can  this  be  the  case  upon  written  awards  unless  the  sub- 
mission in  such  particular  matter  has  been  previously  entered 
as  an  order  of  the  court. 

It  is  usual  to  recite  from  the  submission  the  authority  for 
the  investigation  and  other  points  essential  to  clearness.  The 
exact  terms  of  the  submission  must  be  closely  followed  and  its 
specific  language  complied  with.  The  award  must  deal  only 
with  the  specific  matters  of  controversy,  nothing  more  nor  less. 
The  award  should  preferably  be  written  by  the  arbitrators,  or 
one  of  them,  and  not  by  any  other  person — for  example,  by  the 
attorney  of  either  of  the  parties.  If  some  special  form  or  arrange- 
ment of  the  award  is  necessary  by  reason  of  some  unusual 
complications  or  controversies,  then,  even  in  such  a  case,  the" 
actual  award  must  be  the  arbitrators'  own  decision,  and  not  that 
of  any  other  person;  and  it  would  be  well  that  an  outside 
attorney,  entirely  disinterested,  should  be  asked  to  advise  as  to 
any  particular  form  that  may  be  desired  or  necessary. 

Where  the  submission  stipulates  for  the  ascertainment  of 
a  definite  amount  to  be  payable  by  one  or  both  parties  to  the 
other,  the  award  must  definitely  fix  the  amount  or  amounts  so 
to  be  paid  by  one  or  both  parties  to  the  other,  and  it  should  be 
stated  how  and  when  such  amounts  are  to  be  paid;  but  if  the 
award  leaves  such  matters  unsettled,  or  fails  to  give  data  from 
which  such  amounts  may  be  readily  computed,  then  such  award 
is  bad.  It  is  sufficiently  definite,  however,  if  it  requires  only  a 
simple  mathematical  operation  to  fix  such  amount  or  amounts. 

An  honest  mistake  of  judgment  on  the  part  of  arbitrators 
which  does  not  go  beyond  the  limits  of  the  submission  is  not, 
as  a  rule,  regarded  as  cause  for  impeachment,  notwithstanding 
that  the  court  might  have  decided  otherwise.  The  court  will 
not  substitute  its  judgment  for  that  of  the  arbitrators,  provided 
always  that  the  latter  was  made  all  in  good  faith.  The  award 
must  be  definite,  final,  unmistakable  and  conclusive  in  its 

32 


language  and  parts.  The  expression  occasionally  used,  "we 
propose"  that  such  a  thing  be  done,  is  too  ambiguous  and  should 
not  be  used.  We  "direct"  is  proper  and  much  to  be  preferred. 

Every  right  and  obligation  of  each  party  must  be  clearly 
fixed  and  made  definite.  The  award  should  be  made  within  the 
time  stipulated  in  the  submission,  or  within  such  period  of  ex- 
tended time  as  may  have  received  the  sanction  of  the  court  and 
the  parties,  or  if  there  be  no  time  stipulation,  then  sixty  days 
would  not  be  considered  an  unreasonable  limit.  An  agreement 
between  the  parties  authorizing  an  extension  of  time  for  delivery 
of  the  award  should  be  by  deed  corresponding  with  the  original 
submission. 

Arbitrators  are  not  required  to  give  details  of  their  figures, 
nor  reasons  nor  explanations  as  to  how  or  why  they  arrived  at 
their  conclusions,  any  more  than  judges  of  the  court  are  required 
to  do  such  things.  (See  Arbitration  between  Connor  and  Pratt, 
128  Cal.,  279;  60  Pac.,  862.)  Even  comments  and  discussions 
concerning  an  award  with  the  parties  or  other  persons  are  best 
avoided,  and  during  the  course  of  an  arbitration  it  is  far  better 
that  no  conversation  on  the  subject  shall  be  held  with  any  person, 
unless  it  be  with  a  co-arbitrator.  An  arbitrator  should  on  no 
account  publicly  anticipate  an  award,  or  express  hostile  or 
favorable  opinions  concerning  the  parties  or  their  methods. 
Such  conversations,  if  they  become  known,  may  later  on  be 
construed  to  amount  to  bias  or  prejudice,  and  afford  ample 
grounds  for  vacating  an  award  (Tyson  vs.  Wells,  2  Cal.,  122), 
even  though  the  co-arbitrator  had  preserved  a  proper  disinter- 
ested attitude.  It  seems  almost  needless  to  add  that  no  arbitrator 
should  be  a  party  to  the  purchase  or  the  acceptance  of  a  lien 
upon  the  undetermined  interest  of  either  party  in  an  arbitration, 
whether  contingent  upon  the  award  or  otherwise. 

The  award  must  not  only  state  the  amount  of  money  due 
from  one  party  to  the  other,  but  it  should  direct  its  payment 
and  when  it  is  to  be  paid,  otherwise  a  non-payment  would  not 
constitute  disobedience  of  the  award. 

A  judgment  entered  upon  an  award  may  be  appealed  (Fair- 
child  vs.  Boten,  42  Cal.,  125),  notwithstanding  any  counter 

33 


stipulation  in  the  submission.  A  writ  of  execution  will  follow 
judgment  upon  an  award  the  same  as  upon  any  other  court 
judgment. 

An  award  may  be  set  aside  if  serious  irregularities  on  the 
part  of  arbitrators  or  umpire  can  be  shown — for  example,  cor- 
ruption, fraud,  gross  error  or  material  misconduct,  irregularity, 
refusing  to  postpone  a  hearing,  or  if  the  arbitrators  have  acted 
in  any  way  in  which  the  rights  of  the  parties  have  suffered  or 
been  prejudiced,  or  if  any  award  has  been  improperly  procured. 
But,  as  already  implied,  an  award  cannot  be  impeached  solely 
as  being  contrary  to  law  and  evidence  (Carsley  vs.  Lindsay,  14 
Cal.,  394),  and  this  is  a  good  point  to  remember. 

The  author  recalls  a  case  in  which  one  of  three  arbitrators 
declined  to  sign  an  award,  upon  the  ground  that  it  was  contrary 
to  the  evidence,  and  this  arbitrator  filed  a  minority  report  to 
that  effect,  but  it  would  appear  that  such  a  proceeding  could 
have  been  of  little  or  no  value  in  any  attempt  to  impeach  the 
award.  As  such  report  has  no  effect,  it  is  quite  unnecessary 
and  might  well  be  omitted  entirely.  Wherever  possible  it  is 
better  for  all  the  arbitrators  to  sign  the  award  in  the  interests 
of  finality. 

Wherever  the  statute  requires  arbitrators  to  acknowledge 
the  execution  of  awards,  this  must  be  done  to  entitle  either  party 
to  a  judgment  upon  an  award,  and  in  any  case  it  is  desirable 
that  the  award  should  be  signed  by  the  arbitrators  at  the  same 
time  and  place — i.  e.,  in  the  presence  of  each  other.  It  is  obvious, 
of  course,  that  one  award  only  can  be  made. 

Courts  usually  construe  an  award  with  a  desire  to  sustain 
the  judgment  of  the  arbitrators  whom  the  parties  have  them- 
selves selected  to  be  their  judges,  and  in  favor  of  finality  and 
validity;  but  an  offensive  award,  or  one  in  direct  opposition  to 
the  rights  of  the  parties,  cannot  stand. 

An  award  may  be  set  aside  where  one  party  was  induced 
to  agree  to  arbitration  through  misrepresentations  made  by 
the  other  party,  or  if  in  submitting  testimony  material  facts 
have  been  suppressed  which  might  have  affected  the  decision. 
It  has  also  been  held  that  false  testimony  will,  in  certain  cases, 

34 


justify  the  setting  aside  of  an  award,  or  of  the  latter  be  uncertain 
or  incomplete.  The  award  must  be  decisive  and  all  matters 
disposed  of.  (Jacob  vs.  Ketcham,  37  Cal.,  197;  Porter  vs.  Scott, 
7  Cal.,  312;  White  vs.  Arthur,  59  Cal.,  33.) 

The  case  of  Peachy  vs.  Ritchie,  4  Cal.,  205,  is  interesting 
as  showing  grounds  for  impeachment.  (See  also  Code  of  Civil 
Procedure  in  the  several  states.) 

The  reason  for  the  foregoing  seeming  strictness  exhibited 
by  the  courts  in  reference  to  arbitrations  is  because  arbitration 
is  a  purely  statutory  proceeding,  and  there  can  be  no  doubt 
whatever  that  the  statute  must  be  closely  followed.  It  has 
been  decided,  however,  in  Kreiss  vs.  Hotaling,  96  Cal.,  617; 
31  Pac.,  740)  that  a  substantial  compliance  with  the  statute  is 
sufficient. 

It  is  not  advisable  to  date  or  publish  an  award  upon  a  legal 
holiday,  or  upon  a  Sunday. 


CHAPTER  EIGHT 
Compensation  of  Arbitrators  and  Umpire 

There  is  a  doubt  at  common  law — assuming  there  is  no 
definite  promise  to  pay — whether  an  arbitrator  can  legally  re- 
cover his  compensation  by  an  action  at  law.  Lord  Kenyon,  the 
eminent  jurist,  ruled  in  1801  that  the  office  of  arbitrator  was 
purely  an  honorary  one,  and  the  author  believes  that  decision 
is  still  maintained.  Now,  however,  business  conditions  have 
entirely  changed,  and  common  sense  would  indicate  that  there 
is  an  implied  promise  to  pay  the  costs  of  arbitration  by  the 
parties  to  a  submission,  the  more  so  in  recent  years,  when, 
among  architects,  contractors,  and  engineers,  are  found  com- 
petent persons  who  regularly  undertake  arbitration  matters 
and  the  adjustment  of  building  disputes  as  a  part  of  their  regular 
profession  or  occupation.  It  would  be  absurd  to  say  that  when 
such  persons  are  invited  to  adjust  disputes  between  contending 

35 


parties  it  is  expected  they  will  act  in  an  honorary  capacity. 

The  compensation  of  an  arbitrator  or  umpire  depends  some- 
what upon  the  circumstances  attending  each  separate  case,  the 
importance  and  nature  of  the  matters  in  dispute,  location,  and 
to  some  extent  the  time  employed,  and  the  amount  of  money 
involved  in  the  dispute.  All  such  things  should  be  considered. 
A  fee  per  diem  is  usually  arranged.  Parties  to  arbitrations 
should  understand  that  the  time  an  arbitrator  is  engaged  in 
hearing  testimony  is  not  only  the  time  that  should  be  paid  for, 
for  the  reason  that  a%  careful  arbitrator,  like  a  careful  judge, 
scarcely  ever  ceases  to  weigh  and  consider  the  matters  submitted 
to  him  until  the  award  is  actually  made.  This  constant  responsi- 
bility must  accordingly  establish  the  basis  of  his  compensation, 
and  so  it  is  customary  to  charge  one  day  for  each  sitting.  Nor 
does  it  follow  that  an  arbitrator's  or  umpire's  compensation  is 
alike  in  all  cases;  it  is  more  businesslike  for  each  to  fix  his  own 
individual  compensation,  which  they  have  the  right  to  do,  except 
where  it  is  fixed  by  statute.  It  may,  however,  be  left  to  the 
discretion  of  the  court.  In  building  arbitrations  the  fees  can 
usually  be  determined  beforehand,  and  this  is  the  better  plan. 
The  compensation  must  on  no  account  be  contingent  upon  the 
result  of  the  arbitration.  It  seems  superfluous  to  say  this,  but 
the  author  has  met  with  such  cases. 

In  the  absence  of  a  definite  agreement  as  to  who  shall  pay 
the  costs  and  expenses  of  an  arbitration,  both  parties  might  be 
held  liable  for  the  full  amount.  (Young  vs.  Starkey,  1  Cal.,  426.) 
An  arbitrator's  claim  for  compensation  if  there  be  a  promise 
to  pay,  implied  or  otherwise,  may  be  enforced  in  the  courts 
of  law  the  same  as  any  other  legal  or  just  claim. 

The  award  should  clearly  direct  how,  when,  and  by  whom  the 
costs,  etc.,  should  be  paid.  It  is  more  satisfactory  that  these 
should  be  paid  in  the  first  place  by  the  party  who  takes  up  the 
award,  and  the  expense  adjusted  afterward  between  the  parties 
as  the  award  may  direct.  If  the  compensation  has  not  been  fixed 
beforehand,  then  a  reasonable  compensation  is  naturally  implied, 
but  in  such  a  case  arbitrators  might  find  it  difficult  to  collect 
by  legal  process,  if  the  claim  was  contested.  Where  such  agree- 

36 


ment  or  promise  does  exist,  then  the  arbitrators  have  a  lien 
upon  the  submission  and  award  until  their  charges  are  paid, 
and  it  is  advisable  that  the  contents  of  the  award  should  not  be 
made  known  until  this  has  been  done. 


Note. — In  the  preparation  of  the  foregoing  pages  the  author 
is  indebted  for  references  to  the  following  standard  works :  Code 
of  Civil  Procedure,  Cyclopedia  of  Law  and  Procedure,  Red- 
mond's Law  of  Arbitration  and  Awards;  Bancroft-Whitney's 
Cal.  Digest,  Journal  of  the  Western  Society  of  Engineers,  Par- 
sons' Law  of  Business, 


(See  also  "Arbitration — Its  Place  in  Our  Professional 
Practice,"  a  paper  read  by  the  author  before  the  Technical 
Society  of  the  Pacific  Coast  November  2,  1900,  and  printed  in 
the  Journal  of  the  Association  of  Engineering  Societies;  also  see  The 
American  Architect,  April  13,  1901. 

37 


CHAPTER   NINE 
Convenient  Forms 

FORM  A   (Wright).  Demanding 

Arbitration. 

BUILDING     ARBITRATION— NOTICE. 
To    ..  191 


A    disagreement    having    arisen    in    connection    with    the    performance    and 
completion    of    a    certain    Building    Contract    made    and    entered    into    between 

you   and    myself,    dated 191 ,    I   hereby   give 

you  notice  that  under  the  provisions  of  said  contract  I  hereby  demand  an 
Arbitration  for  the  purpose  of  finally  adjusting  and  settling  all  matters  in 
difference  between  us,  as  provided  for  in  said  contract. 

I    hereby   nominate    Mr 

as    one    Arbitrator,    and    request    you    to    nominate    another    Arbitrator    on    or 

before day    of 191 ,    and    notify    me 

thereof. 


Address 

FORM  B   (Wright).  Accepting 

Arbitration. 

BUILDING     ARBITRATION— REPLY     TO      NOTICE. 
To    ..  191 


In    accordance   with   your   notice    to    me   dated 191 , 

demanding     Arbitration,      I     hereby    comply     therewith     and     nominate     Mr. 

as    an    Arbitrator,    and    have    requested 


him    to    communicate    with    Mr 

whom    you   have   nominated    as    an   Arbitrator. 


Address 

38 


FORM  C  (Wright).  Submission. 

BUILDING    ARBITRATION— SUBMISSION. 

THIS   INDENTURE,    made   by   and   between 

of   the  City  of ,    County   of 

State    of of    the    first    part, 

hereafter    called    the    Owner,    and , 

of  the  City  of ,   County  of , 

State   of ,    of   the    second   part,    hereafter   called 

the   Contractor. 

WHEREAS,    the    parties    hereto    have    heretofore    entered    into    a    certain 

Building  Contract,  dated 191 ,   and  which 

contract  was  filed  with  the  Recorder  of  the  City  of , 

County  of ,   on   the day  of 

191 ,    and 

WHEREAS,    said    contract   did    contain    the   following   stipulations,    to   wit: 


(insert   Arbitration   Clause   in   full). 


NOW,  WHEREAS,  a  dispute,  and  disputes,  has  and  have  arisen,  and  are 
still  undecided  and  existing,  between  said  parties,  as  hereafter  set  forth, 
to  wit: 

Said  owner  claims  against  said  contractor  the  amounts  set  forth  in  the 
following  Schedule  marked  "A,"  as  follows,  to  wit: 


SCHEDULE   A. 

(Here  state  in   detail   all   the   owner's   claims  against  said   contractor 
and   estimated  money   value    thereof.) 


which  is   disputed   by  said   contractor.     Said 

Contractor  claims  against   said  Owner  the  amounts  set  forth  in   the  following 
Schedule,    marked    "B" : 


SCHEDULE  B. 

(Here  state  in   detail   all   the     contractor's  claims  against  said  owner 
and   estimated   money   value    thereof.) 


which   is   disputed   by   said   owner. 

NOW,  WITNESSETH:    That  the  parties  to  said  contract  and  to  this  Sub- 

39 


mission  to  Arbitration  do  each  of  them  and  for  their  respective  heirs,  adminis- 
trators and  assigns,  covenant  and  agree  with  each  other  to  and  do  hereby 
submit  all  the  before  mentioned  disputes  as  herein  set  forth  to  the  award  and 

final  determination  of and 

as  Arbitrators,  and  to  such  Umpire  as  these  two  last  named  persons  may 
select,  in  accordance  with  the  before- recited  stipulation  in  said  Contract,  and 
further  that  this  Arbitration  shall  be  conducted  in  all  respects  according  to 

the  provisions  of  Sections of  the  Code  of  Civil  Procedure 

of  the  State  of and  that  this   Submission 

be  entered  as  an  order  of  the  Superior  Court  in  and  for  the  County  of 
,  State  of „... 

The  Arbitrators  are  hereby  directed  to  state  in  their  Award  to  what  amount 
in  lawful  money  the  said  Owner  is  indebted  to  said  Contractor,  if  any,  and 
to  what  amount  in  lawful  money  the  said  Contractor  is  indebted  to  said 
Owner,  if  any,  and  how  and  when  such  indebtedness,  if  any,  shall  be  paid 
by  both  or  either  one  to  the  other,  in  final  settlement  of  all  matters  in  difference 
under  this  Arbitration. 

And  the  parties  hereto  do  hereby  further  mutually  agree  as  follows,  to  wit: 

The  award  shall  be  made  and  published  not  later  than  the 

day  of 191 ,   subject  to  such  reasonable  extension  of  time 

as  may  be  necessary.  The  award  shall  thereupon  be  entered  as  a  judgment 
of  the  Superior  Court  of 

The  costs  and  expenses  of  this  Arbitration  shall  be  borne  and  paid  by 
us,  the  parties  hereto,  in  such  proportion  as  the  award  shall  direct;  and  if 
so  directed  by  the  award,  the  party  taking  up  the  award  shall  pay  to  the 
Arbitrators  the  full  amount  of  the  costs  and  expenses  thereof  before  the  award 
is  delivered,  and  the  other  party  shall  then  within  twenty-four  hours  pay  to  or 
refund  to  the  one  paying  the  full  amount  the  proportion  of  the  costs  and 
expenses  which  the'  award  directs  him  to  pay.  The  total  amount  of  said 
costs  and  expenses  and  the  amounts  due  from  each  party  shall  be  stated  in 
the  Award. 

FINALLY:  The  parties  hereto  mutually  agree  to  stand  to  and  abide  by 
the  award  and  to  forthwith  comply  with  and  execute  all  orders,  awards, 
decisions,  and  judgments  therein  contained.* 

IN  WITNESS  WHEREOF,  the  parties  have  hereunto  set  their  hands  and 
seals  this day  of ,  191 


Subscribed  and  sworn  to  before  me  this 

day  of ,    191. 


(NOTE:     In  cases  where  it  may  be  more  convenient.  Forms  D  and  E  may 
follow  Form   C  and   form  part   of  the   same   document.) 

*  Optional,   "and  they  further  agree  not  to  appeal  from  such  final  award." 

40 


FORM  D  (Wright).  Arbitrators' 

Acceptance, 

BUILDING     ARBITRATION. 

We,    the    undersigned.    „ and 

,    having    been    nominated    to 

act  as  Arbitrators  for  the  purpose  of  finally  adjusting  and  settling  all  disputes 

and   matters  in  difference  existing  between 


and arising  out  of  the  performance  and  com- 
pletion of  a  certain  Building  Contract  made  and  entered  into  between  the 

parties   last   named,   dated   the day  of 

191 ,  do  hereby,  each  for  himself,  accept  such  nomination,  and  we  each  will 

faithfully,  fully  and  fairly  hear  the  allegations  of  the  parties  and  the  testimony 
presented  to  us,  and  we  will  each  for  himself  make  a  just  and  true  award 
according  to  our  best  understanding,  and  we  hereby  select  and  appoint 

, as  Umpire,  in  accordance  with 

the    provisions    of    the    before-mentioned    Building    Contract. 

Arbitrator. 

Arbitrator. 

Subscribed  and  sworn  to  before  me  this 

day   of ,    191 


FORM  E  (Wright).  Acceptance  by 

Umpire. 

BUILDING     ARBITRATION. 

Whereas,  and • 

Arbitrators  duly  qualified,  having  selected  and  appointed  me,   the  undersigned, 
as    Umpire    for    the    purpose    of    finally    adjusting   and    settling   all    matters    in 

difference   existing  between and 

arising  out  of  the  performance 

and  completion  of  a  certain  Building  Contract,  made  and  entered  into  between 


the  parties  last  named,  dated  the day  of , 

191 ,   I   do   hereby  accept   such   selection   and   appointment. 

Further,  I  will  faithfully,  fully,  and  fairly  hear  such  allegations  of  the 
parties  and  testimony  as  may  be  presented  to  me,  and  I  will  make  a  just  and 
true  award  according  to  my  best  understanding. 

Umpire, 

Subscribed  and  sworn  to  before  rne  this 

day   of ,    191 

41 


FORM  F   (Wright).  Notice  of 

Hearing. 

BUILDING     ARBITRATION. 

To /  Parties   to   Submission   to   Building  Arbi- 

and  \    tration,   dated day  of 

\  1 91 

NOTICE     OF     HEARING. 


In  the  matter  of  the  above  Arbitration  we  appoint  the., 
day  of ,  191........  at  the  hour  of. 


at as   the  time   and   place  for  hearing 

the  allegations  and  testimony  therein. 

The  time  and  place  at  which  adjourned  meetings  will  (if  necessary)  be 
held  will  be  announced  at  the  above  and  adjourned  meetings.  You  will  please 
take  notice  thereof  and  attend. 


Arbitrator. 

Arbitrator. 

...day  of .,   191 


FORM  O  (Wright).  Subpoena  for 

Witnesses. 

BUILDING     ARBITRATION. 
SUBPOENA. 


1    Parties   to    Submission   to   Building  Arbi- 

and  N    tration,  dated day  of 

V  ...  .    191.... 


To. 


In  the  matter  of  the  above  Arbitration  you  are  hereby  notified  to  attend 
before    the   Arbitrators,    without   fail,    for   the   purpose   of   giving   testimony   in 

the  said  matter  at on , 

the day  of 191 

Arbitrator. 

Arbitrator. 

day  of 191 

42 


FORM  H  (Wright).  Oath. 

BUILDING     ARBITRATION. 

An  Arbitrator  will  first  say  to  each  witness  as  follows,  viz:  This  is  an 
Arbitration  to  adjust  and  settle  certain  matters  in  difference  existing  between 

and as  set 

forth  in  a  certain  Submission  to  Arbitration  dated 

One  of  the  Arbitrators  will  administer  the  oath  as  follows: 

The  testimony  you  shall  give  touching  all  matters  concerning  this  Arbitra- 
tion shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  so  help 
you  God. 

(The  witness  will  stand,  uncovered,  with  right  hand  raised,  during  the 
administration  of  the  oath.) 

AFFIRMATION:  to  be  similarly  used  for  witnesses  having  no  religious 
belief,  as  follows: 

I  sincerely,  solemnly,  and  truly  affirm  and  declare  that  I  will  answer 
truly  all  questions  put  to  me  concerning  this  Arbitration. 


NOTE:  Where  an  interpreter  is  necessary  it  is  customary  to  first  swear 
the  interpreter.  The  witness  then  takes  such  oath  as  he  states  shall  be  binding 
upon  him,  administered  by  an  Arbitrator,  through  the  interpreter. 

43 


FORM  I  (Wright).  AwmrA. 


BUILDING     ARBITRATION. 


Parties  to    ( 
Arbitration  \ 


Arbitrators 


AWARD. 


and 
and  whom  else  it  may  concern: 


WHEREAS,  by  a  certain  Submission  to  Arbitration  dated  the... 
day  of ,   191 ,   made  between 


and for  the  purpose 

of  submitting  all  disputes  then  existing  between  them,  as  set  forth  in  Schedules 

"A"  and  "B,"  forming  part  of  said  Submission  to 


and ,    Arbitrators   duly   qualified,    for 

their  final  determination  and  award,  and  who,  in  case  they  could  not  agree, 
were  empowered  to  select  an  Umpire  in  accordance  with  the  terms  of  a  certain 
Building  Contract  entered  into  by  the  first  named  parties  herein;  and 

44 


WHEREAS,    the    two    said    Arbitrators    have    disagreed    and    have    selected 
— as  an  Arbitrator  to  act  as  Umpire;  and 


WHEREAS,  the  decision  of  any  two  of  the  last-named  Arbitrators  and 
Umpire  shall  be  binding  upon  the  parties  to  this  Arbitration,  as  provided  for 
in  the  before-mentioned  Contract;  and 

WHEREAS,  We,  the  undersigned,  acting  together,  having  heard  all  of  the 
testimony  of  each  of  the  said  parties  and  the  arguments  presented  to  us,  and 
having  examined  all  witnesses  under  oath,  and  the  evidence  on  both  sides  being 
now  all  in,  and  all  disputed  matters  determined  and  closed,  we  hereby  make 
and  publish  our  award  herein  as  follows,  to  wit: 


AWARD. 

WB  DIRECT Owner,  to  pay 

unto Contractor,   the   sum   of 

_\ „ „ Dollars,    ($ ).   in  United 

States  lawful  money  within  seven  days  hereafter. 

WE   DIRECT Contractor, 

to  pay  unto ,  Owner,  the  sum  of 

Dollars,    ($ ),   in  United 

States  lawful  money  within  seven  days  hereafter. 

We  also  direct  that  the  above  payment,  and  payments,  shall  be  made  and 
accepted  by  the  parties  in  final  settlement  of  all  disputes  and  matters  in 
difference  between  them  under  this  Arbitration. 

And  we  further  direct  that  the  total  costs  and  expenses  of  this  Arbitration, 

amounting  to  the  sum  of - ~. Dollars, 

($ „ „ „.),   shall  be  paid  to  the  undersigned  by  the  party  taking  up 

this  award,  and  that owner, 

shall  pay  the  sum  of Dollars, 

(I - ^ — ),    as   his   proportion   of   said   costs   and   expenses,    and   that 

_ Contractor,    shall  pay  the  sum  of 

„ Dollars,    ($ ),    as   his   proportion 

of  said  costs  and  expenses. 

45 


IN  WITNESS  WHEREOF,  we  have  together  and  in  the  presence  of  each 

other  attached  our  signatures  to  this  our  Award,  the day  of 

191 

Arbitrator. 

.Arbitrator. 

_ Umpire. 

Subscribed  and  sworn  to  before  me  this 

day  of 191 • 


NOTE — The  Author  will  be  pleased  to  receive  any  suggestions  from  readers 
with  a  view  to  making  future  additions  of  this  work  of  more  value  or  interest  to 
laymen.  Any  reports  of  recent  interesting  Arbitration  cases  appertaining  to 
Building  Construction  will  be  much  appreciated  if  forwarded. 


571  California  Street 

San  Francisco,  Cai. 


G.  ALEXANDER  WRIGHT. 


READER'S   NOTES 


»•••       • o       .        »    , 

:•  /  *.  :..*  ••,  • ; 
•    •••  i  •.  s  •: : 


READER'S    NOTES 


48 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  SO  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.OO  ON  THE  SEVENTH  DAY 
OVERDUE. 


13Apr54Vlf 


LD  21-100m-7,'40 (6936s) 


Gaylord  Bros. 

-Makers 

Syracuse,  \    y 

P4T.  JM.  21  m 


HT~  J<3*5-& 


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